COA orders hundreds of photos, videos returned to sex offender

A sex offender’s longtime fight for the return of videos and photographs taken from his home during his arrest has resulted in the Indiana Court of Appeals finding the withholding of the property to be completely erroneous.

Prior to his convictions for multiple counts of child molesting, sexual misconduct with a minor and child solicitation, property was seized from Larry Warren’s home and his mother’s home. That included hundreds of photographs and videos and electronic devices not used in prosecuting his crimes, which Warren later petitioned be returned to him.

He received his electronics back but was denied the photos and videos due to their sexually graphic content of unnamed and unidentifiable individuals. The state was unsure if consent had been granted by those individuals.

After several more motions for the property’s return were denied, a trial court released more of Warren’s items but continued to deny him the photos and videos. It concluded that because he was a sex offender, and the court was unsure of what he could legally possess, that property would remain out of his hands. But in finding that decision completely erroneous, the Indiana Court of Appeals reversed and remanded the denial of Warren’s motion in Larry Warren v. State of Indiana, 18A-CR-1725.

In addressing whether Warren could “lawfully possess” the materials, the appellate court noted that despite the trial court’s assertion that he could not possess such materials due to his child molesting convictions and incarceration, the materials could have been released to his mother or agent, as had some of his other items.

It further noted that among the hundreds of videos and photographs, only one example of sexual content was referenced by the state, and that the trial court thus accepted all of the materials to contain “questionable consensual circumstances.”

“We recognize, as the trial court did, the time involved in cataloguing Warren’s materials. The State, however, cannot take a person’s property, not use the property in a prosecution, and then refuse to return the property because doing so is burdensome,” Judge Elizabeth Tavitas wrote for the panel. “Warren was not charged with any crimes related to these materials, and he is entitled to the return of his property that he can lawfully possess. The trial court’s blanket order fails to specifically identify the materials Warren can and cannot lawfully possess.”

The panel noted the burden is on Warren to prove that the materials can be lawfully possessed, are not obscene, and that participants in sex acts depicted were aware of or consented to the recordings.

The appellate court further noted that the trial court might attempt to fashion a similar remedy to allow the specific cataloguing of Warren’s materials as presented in U.S. v. Gladding, 775 F.3d 1149 (9th Cir. 2014).